Date of Last Revision:  February 2, 2013.

The following terms and conditions govern all use of the website and all content, services and products available at or through the website, (altogether, the “Website”). The Website is owned and operated by Positif, Inc. (“Positif”). The Website is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Positif’s Privacy Policy) and procedures that may be published from time to time on this Site by Positif (collectively, the “Agreement”).

Please read this Agreement carefully before accessing or using the Website. By accessing or using any part of the web site, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website or use any services. If these terms and conditions are considered an offer by Positif, acceptance is expressly limited to these terms. The Website is available only to individuals who are at least 13 years old.

  1. Your Pencil You In Account and Site.  If you create an account on the Website, you are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account. You must immediately notify Positif of any unauthorized uses of your account or any other breaches of security. Positif will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.
  2. Responsibility of Contributors.  If you operate an account, or otherwise make (or allow any third party to make) material available by means of the Website (any such material, “Content”), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, or an audio file. By making Content available, you represent and warrant that:
    • you will not solicit login information or access an account belonging to someone else;
    • you will not share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account;
    • in selecting a username for your account we reserve the right to remove or reclaim it if we believe appropriate (such as when a trademark owner complains about a username that does not closely to relate to a user's actual name or professional practice, i.e., salon, etc.). Positif will have no obligation to refund any fees incurred by you as a result of such action;
    • you will not use Pencil You In to do anything unlawful, malicious, or discriminatory;
    • you will not use Pencil You In to hinder or impair the operations of other professionals using the service, including but not limited to scheduling bogus appointments in another professional's Pencil You In appointment book;
    • you will not do anything that could disable, overburden, or impair the proper working of Pencil You In, such as a denial of service attack;
    • you will not facilitate or encourage violations of these Terms of Service;
    • the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
    • if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any photos, or (ii) secured from your employer a waiver as to all rights in or to the Content;
    • you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
    • you acknowledge that in addition to any fees charged by Positif for use of any Pencil You In phone-related services (including but not limited to automated phone reminders, text message reminders, and text message notifications and alerts) your phone service carrier's rates and fees, such as text messaging fees, will still apply. Positif will not be responsible for these additional charges;
    • in the event that you change or deactivate your phone number, you will update your account information on Pencil You In within 24 hours to ensure that your notifications and reminders are not sent to the person or entity who acquires your previous phone number;
    • the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
    • the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
    • the Content is not obscene, libelous or defamatory, hateful or racially or ethnically objectionable, and does not violate the privacy or publicity rights of any third party;
    • your account is not named in a manner that misleads your customers into thinking that you are another person or company. For example, your account’s URL or name is not the name of a person other than yourself or company other than your own.

    By submitting Content to Positif for inclusion on this Website, you grant Positif a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your appointment book on the Website. If you delete Content, Positif will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.

    Without limiting any of those representations or warranties, Positif has the right (though not the obligation) to, in Positif's sole discretion (i) refuse or remove any content that, in Positif's reasonable opinion, violates any Positif policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Positif's sole discretion. Positif will have no obligation to provide a refund of any amounts previously paid.

  3. Fees and Payment.  Optional premium paid services such as automated phone reminders and text message reminders are available on the Website. By selecting a premium service you agree to pay Positif the monthly subscription fees indicated for that service. Payments will be charged on the day you sign up for a premium service and will cover the use of that service for a monthly period (30 days) as indicated. Payments by credit or debit card may be subject to obtaining a pre-approval from the issuer of the card for an amount up to the amount of the purchase. You alone are responsible for overdrafts or other fees that arise from payments by credit or debit card.
  4. Responsibility of Website Visitors.  Positif has not reviewed, and cannot review, all of the material, including photos, scheduling hours, or services posted to the Website, and cannot therefore be responsible for that material's content, use or effects. By operating the Website, Positif does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Positif disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content there posted.
  5. Content Posted on Other Websites.  We have not reviewed, and cannot review, all of the material, including photos, scheduling hours, or services made available through the websites and webpages to which links, and that link to Positif does not have any control over those non-Positif websites and webpages, and is not responsible for their contents or their use. By linking to a non-Positif website or webpage, Positif does not represent or imply that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Positif disclaims any responsibility for any harm resulting from your use of non-Positif websites and webpages.
  6. Copyright Infringement.  As Positif asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by Pencil You In violates your copyright, you are encouraged to notify Positif. Positif will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. In the case of a visitor who may infringe or repeatedly infringes the copyrights or other intellectual property rights of Positif or others, Positif may, in its discretion, terminate or deny access to and use of the Website. In the case of such termination, Positif will have no obligation to provide a refund of any amounts previously paid to Positif.
  7. Intellectual Property.  This Agreement does not transfer from Positif to you any Positif or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Positif. Positif, Pencil You In, the Pencil You In logo, and all other trademarks, service marks, graphics and logos used in connection with, or the Website are trademarks or registered trademarks of Positif or Positif’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any Positif or third-party trademarks.
  8. Changes.  Positif reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website following the posting of any changes to this Agreement constitutes acceptance of those changes. Positif may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.
  9. Termination.  Positif may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your Pencil You In account (if you have one), you may simply discontinue using the Website. Notwithstanding the foregoing, if you have a premium account (Pencil You Professional or Pencil You In Team Prefessional accounts), such account can only be terminated by Positif if you materially breach this Agreement and fail to cure such breach within thirty (30) days from Positif’s notice to you thereof; provided that, Positif can terminate the Website immediately as part of a general shut down of our service. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
  10. Disclaimer of Warranties.  The Website is provided “as is”. We try to keep Pencil You In up, bug-free, and safe, but you use it at your own risk. Positif and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Positif nor its suppliers and licensors, makes any warranty that the Website will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Website at your own discretion and risk.
  11. Limitation of Liability. In no event will Positif, its directors, officers, employees, agents, suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement or substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Positif under this agreement during the twelve (12) month period prior to the cause of action. Positif shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
  12. General Representation and Warranty. You represent and warrant that (i) your use of the Website will be in strict accordance with the Positif Privacy Policy, with this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) your use of the Website will not infringe or misappropriate the intellectual property rights of any third party.
  13. Indemnification. You agree to indemnify and hold harmless Positif, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to out of your violation this Agreement.
  14. Miscellaneous. This Agreement constitutes the entire agreement between Positif and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Positif, or by the posting by Positif of a revised version. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website will be governed by the laws of the state of North Carolina, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Cumberland County, North Carolina. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Fayetteville, North Carolina, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Positif may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.

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